Court: Court of Appeal of Louisiana, Fifth CircuitJurisdiction: FederalCase Name: Aaron v. McGowan Working PartnersCitation: 2017 La. App. LEXIS 1105
In this case, the court found that there is no good cause as per La. Code Civ. Proc. Ann. art. 1464 with respect to independent medical examinations undertaken 9 years after chemical exposure to hydrogen chloride.
Facts
In this mass tort lawsuit, which arose from a hydrochloric acid leak, the defendants filed a motion to reverse the trial court’s decision excluding the testimony of their internal medicine expert witness.
The Internal Medicine Expert Witness
The defendants’ internal medicine expert witness was a doctor specializing in internal medicine and infectious diseases. In addition to owning a private practice, the internal medicine expert served as Chief Health Officer of New Orleans for 13 years and Vice-Chair of the Board of Commissioners of the Orleans Parish Communications District. He was a regular expert guest of news stations and has frequently contributed articles related to health in journals such as the New Orleans Magazine.
The defendants retained the internal medicine expert witness to perform independent medical examinations of the plaintiffs and to provide an opinion as to whether the claims of each plaintiff regarding the alleged time and location of exposure as well as the resulting symptoms were compatible with known and accepted scientific concepts applicable to low-level HCl exposure.
The trial court noted that good cause must exist in order to allow independent medical examinations because examinations carried out 9 years after the incident occurred could not help the court. The trial court also claimed that its analysis of the internal medicine expert’s findings suggested that they dealt with credibility issues and discrepancies in the plaintiff’s evidence more than they did with medical opinions. It was also illegal to testify about the examinations.
The defendants argued that the trial court erred by banning the expert from performing the tests because obtaining a medical history is an important part of the medical evaluation. The defendants also argued that the trial court erred by banning the expert from addressing “time and concentration components” in relation to each of the plaintiffs of the case, claiming that the limitations placed on his testimony deprived them of the chance to defend the specific allegation of causation.
Discussion
The court noted that the courts have broad discretion to control the discovery before trial, the discretion of which will not be impaired on appeal if there is no direct evidence of abuse (citing Oliva v. Winn-Dixie La). It found that the trial court had not abused its discretion by barring further examinations due to a lack of good cause to perform one 9 years after the incident.
Additionally, the court observed that the plaintiffs did not have complex injuries, and that the expert had access to extensive information about each plaintiff through their litigation forms, depositions, testimony, and medical records. The court also noted that the trial court had allowed the expert to discuss his opinions on the lack of evidence of specific cause and effect with respect to the plaintiffs who showed anomalies in showing primary symptoms of HCl exposure. Furthermore, the court was of the opinion that there was no need for a specific causation expert witness testimony to establish or compare reported exposure times of patients with the occurrence of HCl exposure.
Held
The defendants’ motion to reverse the trial court’s exclusion of testimony of the internal medicine expert witness was denied.
About the author
Wendy Ketner, M.D.
Dr. Wendy Ketner is a distinguished medical professional with a comprehensive background in surgery and medical research. Currently serving as the Senior Vice President of Medical Affairs at the Expert Institute, she plays a pivotal role in overseeing the organization's most important client relationships. Dr. Ketner's extensive surgical training was completed at Mount Sinai Beth Israel, where she gained hands-on experience in various general surgery procedures, including hernia repairs, cholecystectomies, appendectomies, mastectomies for breast cancer, breast reconstruction, surgical oncology, vascular surgery, and colorectal surgery. She also provided care in the surgical intensive care unit.
Her research interests have focused on post-mastectomy reconstruction and the surgical treatment of gastric cancer, including co-authoring a textbook chapter on the subject. Additionally, she has contributed to research on the percutaneous delivery of stem cells following myocardial infarction.
Dr. Ketner's educational background includes a Bachelor's degree from Yale University in Latin American Studies and a Doctor of Medicine (M.D.) from SUNY Downstate College of Medicine. Moreover, she is a member of the Board of Advisors for Opollo Technologies, a fintech healthcare AI company, contributing her medical expertise to enhance healthcare technology solutions. Her role at Expert Institute involves leveraging her medical knowledge to provide insights into legal cases, underscoring her unique blend of medical and legal acumen.
